Case Blurb: Bobbitt; Elements for Attorney-Client Privilege

The elements of the attorney-client privilege were summarized decades ago by Dean Wigmore as follows:(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.

Bobbitt v. Acad. of Court Reporting, Inc., 2008 U.S. Dist. LEXIS 65513, 17-18 ( E.D. Mich. Aug. 26, 2008) (citing 8 Wigmore, Evidence (McNaughton rev. ed.1961), § 2292, p. 554).

Case Blurb: Cason-Merenda; Cost-Shifting Motions Should be Brought before Production, not After

I am persuaded that the instant motion [to allocate 50% of Producing Party's cost to Requesting Party] is untimely in two respects. First, the courts Scheduling Order of April 23, 2007 provides, in pertinent part, that “[a]ll motions … for protective orders … must be filed within 14 days of receipt or notice of such disputed discovery.” Second, the provisions of Fed.R .Civ.P. 26(b)(2)(B) and 26(c) plainly contemplate that a motion for protective relief (including cost shifting) is to be brought before the court in advance of the undue burden, cost or expense from which protection is sought.
[...]
The Rule [26(b)(2)(B)], if it is to be sensible and useful, must be read as a means of avoiding undue burden or cost, rather than simply distributing it. Indeed, Fed.R.Civ.P. 1 provides that the Rules are to be “construed and administered to secure the just, speedy and inexpensive determination of every action and proceeding.” (Emphasis added).

This interpretation is further reinforced by Fed.R.Civ.P. 26(b) (2)(C)(iii) which provides that the court must limit the frequency or extent of discovery otherwise allowed by the rules if it determines that “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the party’s resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” (Emphasis added). Again the clear objective is the avoidance of undue cost rather than merely the apportionment of it.
[...]
On the theory that the information in question was not inaccessible within the meaning of Rule 26(b), [Requesting Party] invokes the court’s broad authority to protect a party from “undue burden or expense” under Rule 26(c).
[...]
The rule provides, in pertinent part, that “[t]he court may, for good cause, issue an order to protect a party or person from … undue burden or expense, including one or more of the following:
(A) Forbidding the disclosure or discovery;
(B) Specifying terms, including time and place, for the disclosure or discovery;
(C) Prescribing a discovery method other than the one selected by the party seeking discovery;
(D) Forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
Fed.R.Civ.P. 26(c)(1). The clear import of the language employed is that the court has wide discretion to prevent undue burden or expense.

Cason-Merenda v. Detroit Med. Ctr., 2008 WL 2714239 (E.D. Mich. July 7, 2008 )

Case Blurb: Ed Schmidt Pontiac-GMC Truck, Inc.; Elements for Spoliation as a Cause of Action in Ohio

In Ohio, the elements of a spoliation claim [i.e., a claim for interference with or destruction of evidence] are:
(1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of defendant that litigation exists or is probable, (3) willful destruction of evidence by defendant designed to disrupt the plaintiff’s case, (4) disruption of the plaintiff’s case, and (5) damages proximately caused by the defendant’s acts.

Ed Schmidt Pontiac-GMC Truck, Inc. v. Chrysler Motors Co., LLC, 2008 WL 2704859 (N.D. Ohio July 7, 2008 )

Case Blurb: Ed Schmidt Pontiac-GMC Truck, Inc.; Failure to Implement Lit Hold not an element of Ohio Spoliation Cause of Action

First, I agree with Chrysler that failure to implement a litigation hold is not an element of a spoliation claim. Nor, in my view, would such implementation be an affirmative defense to such a claim. While whether a party implemented or failed to implement an implementation hold, or whether its directive to its employees was comprehensive and sufficient might be evidence of culpable intent, no liability results simply from either failure to implement a litigation hold or defects in its scope and substance.

In this case, to be sure, a jury could find that no litigation hold was in place for the year between Chrysler’s initial awareness of possible litigation and filing of this suit. But that, alone, is not sufficient to impose liability on Chrysler for spoliation of evidence. A jury might also conclude, if it credited Schmidt’s version of the insufficiency, that the litigation hold, whatever it was, was not sufficiently specific and comprehensive to ensure retrieval and retention of pertinent data. But on the basis of the present record, that’s a decision for the jury, and not for me to make by granting Schmidt’s motion for summary judgment.

Ed Schmidt Pontiac-GMC Truck, Inc. v. Chrysler Motors Co., LLC, 2008 WL 2704859 (N.D. Ohio July 7, 2008 )

Case Blurb: Search Cactus; Court lays out Protocol for Forensic Collection of Plaintiff’s Hard Drive

Post Process-Plaintiff Attorney objected to a forensics exam of his computer hard drive, a computer which he used both personally and professionally. The court, though noting the validity of issues raised, ruled for Defendants. In doing so, it appointed two forensics experts to act as officers of the court, and issued the following protocol:

[T]his Court ORDERS:
1. Within seven days of the date of this Opinion and Order, Plaintiff’s forensic computer expert shall mirror image both of Plaintiff’s computer systems’ hard drives and Plaintiff shall preserve this mirror image.

2. Plaintiff’s forensic computer expert shall then remove only Plaintiff’s confidential personal information from the mirror image of Plaintiff’s computer systems’ hard drives. Plaintiff’s expert shall provide Defendants with the protocol he utilized to remove the confidential information.

3. Plaintiff shall then provide Defendants’ computer forensic expert access to his computer systems’ hard drives.

4. Defendants’ forensic computer expert shall mirror image Plaintiff’s computer systems’ hard drives in approximately four to eight hours for each system. If the expert finds that this is not enough time, Plaintiff is expected to be reasonable in allowing some additional time. Defendant is expected to be considerate with regard to scheduling times that are less intrusive to Plaintiff and his business.

5. Defendants’ expert shall review his findings in confidence with Plaintiff prior to making any findings available to Defendants.

6. Plaintiff shall identify for deletion any information that is irrelevant and create a specific privilege log of any relevant information for which he claims privilege. The computer forensic expert shall remove the information claimed as privileged and provide all other information to Defendants.

7. Defendants’ expert shall provide Plaintiff with the protocol he utilized to remove the privileged information.

8. Forensic computer experts C. Matthew Curtin and Scott T. Simmons shall act as officers of this Court. Defendants shall be responsible for remunerating Mr. Curtin and Plaintiff shall be responsible for remunerating Mr. Simmons.

Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 at *5 (S.D. Ohio Apr. 28, 2008 )

Case Blurb: Search Cactus LLC; Forensics Examiners to Serve as Officers of the Court

Post Process-Plaintiff Attorney objected to a forensics exam of his computer hard drive, a computer which he used both personally and professionally. The court, though noting the validity of issues raised, ruled for Defendants. In doing so, it appointed two forensics experts to act as officers of the court:

It appears to the Court that both of the forensic computer experts presented to it are qualified. In certain situations, courts appoint computer forensic experts to act as officers of the court to help “reduce privacy intrusions and privilege waiver issues during forensic analysis.” Mark E. Borzych, Avoiding Electronic Discovery Disputes: Practice Questions Answered, 41 AZ Attorney 36 (January 2005). See also Thielen, 2007 U.S. Dist. LEXIS 8998, at *8 (court ordered forensic analysis by third party and accepted that no waiver of privilege occurred). Thus, the two identified computer forensic experts shall serve as officers of this Court.

Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 at *4 (S.D. Ohio Apr. 28, 2008 )

Case Blurb; Cumis Ins. Co., Inc.; Production of Metadata from Various Systems

[Producing Party's Representative] states that [Producing Party] Cumis stores information in three electronic formats: APEX files, Lotus Notes (email), and Microsoft Office files. She affirmatively states that APEX was “custom created” for use by CUMIS for policy and claims management, and does not generate metadata. Thus, with regard to APEX files, the issue is moot: Defendant cannot produce what does not exist.

With regard to Lotus Notes email messages, [Producing Party's Rep] states that they “contain only a small amount of metadata. This includes the date and time of the creation of the message file, as well as a long string of characters that serves as a unique identifier for each message.” She further states that she has reviewed the screen-shots of the email message produced for Plaintiff, and that “[a]ll metadata pertaining to the individual messages, except for the unique identifier referred to in the above paragraph is visible on these printouts.” Hence, except for an “identifier” that would have no evidentiary value, the relevant metadata (such as date and time of creation) appears in the PDF copy. Were this not the case, there would be value in producing the metadata. However, since the PDF copies contain all the relevant information that Plaintiff would otherwise glean from the metadata, I agree with Defendant that producing the metadata for the emails would be unduly burdensome.

[Producing Party Rep] states that in the ordinary course of business, documents generated by Microsoft Office are kept in paper form. (This is the form which Defendant has produced to Plaintiff). She states further that producing the metadata for these documents would consume substantial resources. The substantive information contained in Microsoft Office documents speaks for itself, and is reflected in the discovery that has already been provided to Plaintiff. Given the admonitions of Williams v. Sprint, Wyeth, and Kentucky Speedway, supra, regarding the relative lack of worth of metadata, and the lack of any showing by Plaintiff that the metadata underlying Microsoft Office documents would be likely to lead to the discovery of relevant evidence, I agree with Defendant that the production of this metadata would be overly burdensome with no corresponding evidentiary value.

Mich. First Credit Union v. Cumis Ins. Society, Inc., 2007 WL 4098213 (E.D. Mich. Nov. 16, 2007)

Case Blurb: Cumis Ins. Society, Inc; Rule 34 and metadata

Although Rule 34 speaks of “data compilations,” it does not explicitly reference or require the production of metadata. The Rule does indicate that a request for electronic discovery may specify the form of production, and that if a particular form is not specified, information must be produced “either in a form or forms in which it is ordinarily maintained, or in a form or forms that are reasonably usable.” Rule 34(b)(ii).

Mich. First Credit Union v. Cumis Ins. Society, Inc., 2007 WL 4098213 (E.D. Mich. Nov. 16, 2007).

Case Blurb: Scotts Co.; Forensic Copies not required by amended FRCP

The 2006 amendments to Rule 34 of the Federal Rules of Civil Procedure simply clarify “that discovery of electronically stored information stands on equal footing with discovery of paper documents.” Fed.R.Civ.P. 34 Advisory Committee’s Note on 2006 Amendments. Consequently, without a qualifying reason, plaintiff is no more entitled to access to defendant’s electronic information storage systems than to defendant’s warehouses storing paper documents.

The discovery process is designed to be extrajudicial, and relies upon the responding party to search his records to produce the requested data. In the absence of a strong showing that the responding party has somehow defaulted in this obligation, the court should not resort to extreme, expensive, or extraordinary means to guarantee compliance. Imaging of computer hard drives is an expensive process, and adds to the burden of litigation for both parties, as an examination of a hard drive by an expert automatically triggers the retention of an expert by the responding party for the same purpose. Furthermore, as noted above, imaging a hard drive results in the production of massive amounts of irrelevant, and perhaps privileged, information. Courts faced with this inevitable prospect often erect complicated protocols to screen out material that should not be part of discovery. See, e.g., Playboy Enters., 60 F.Supp.2d [1050, 1054 (S.D.Cal.1999) (appointing court’s expert to conduct examination). Again, this adds to the expense and complexity of the case.
This court is therefore loathe to sanction intrusive examination of an opponent’s computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information. Such conduct is always a possibility in any case, but the courts have not allowed the requesting party to intrude upon the premises of the responding party just to address the bare possibility of discovery misconduct.

The Scotts Co. v. Liberty Mutual Ins. Co., 2007 WL 1723509 (S.D. Ohio June 12, 2007) (quoting with approval Diepenhorst v. City of Battle Creek, 2006 U.S. Dist. LEXIS 48551, *10-11 (W.D. Mich. June 30, 2006).)

Case Summary: Powers; Counsel’s impatience with adversary grounds for denial of motion for sanctions

In a case in which a law school was accused of failing to grant a student with visual disabilities reasonable accommodations in compliance with a state act, plaintiff’s counsel’s request, during oral arguments concerning defendant law school’s compliance with a production order issued by the court, that his expert be allowed to examine the school’s work order tracking system was denied by the court. Plaintiff’s counsel had not requested access to the system in his brief. Plaintiff’s counsel had also failed to abide by local and federal rules by making his motion before making a reasonable attempt to confer with defendant. Counsel had sent defense counsel a fax requesting information on September 18, 2006. At 2:34 p.m. on the same day, Plaintiff’s counsel called defense counsel’s office and was told that defense counsel was not in the office. Plaintiff left a voice-mail, and then filed a motion with the court at 4:23 p.m.

The court found that by allowing defense counsel “less than one business day,” that defense counsel had been given an “unreasonable time” in which to respond. Furthermore, Plaintiff’s counsel had “displayed impatience” and had not displayed “a good-faith effort to resolve [this particular] discovery dispute.” This failure, in and of itself, was grounds for denial of the motion and imposition of sanctions. Powers v. Thomas M. Cooley Law School, 2006 WL 2711512 (W.D. Mich. 2006).